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Bonds' arraignment set for today

Bonds' arraignment set for today

By Barry M. Bloom
/
MLB.com |

SAN FRANCISCO -- The first step in the case now entitled U.S. v. Barry Bonds will be taken this morning in courtroom No. 10 at the federal building in San Francisco.

At 9 a.m. PT, Bonds is scheduled to be arraigned on four counts of perjury and one count of obstruction of justice for allegedly lying about his use of performance-enhancing drugs in testimony given to a grand jury four years ago.

These initial proceedings, which should take no longer than 15 minutes, include the arraignment before U.S. Magistrate Judge Maria-Elena James, followed immediately by the setting of a trial date by U.S. District Judge Susan Illston. Major League Baseball's all-time home run king is expected to plead "not guilty" on all charges and be released on his own recognizance. Then the real maneuvering will begin.

"As a media event, it has grown tedious, but as a legal event, it's just getting started," Keith Scherer, a federal criminal defense attorney, told Hardball Times. "In Bonds' case, there are likely to be tens of thousands of pages of documents -- lab reports, bank records, phone records, e-mails, and so on -- and it will take the defense months to analyze them. There might also be wire recordings and transcripts, and other kinds of non-documentary evidence, and it will have to be analyzed.

"In addition to the time it will take to review the government's evidence, you can expect many months of pretrial motions, contested hearings, status hearings, and scheduling delays. The defense is going to be very aggressive, especially since this case, win or lose, is as much about rehabilitating Bonds' public image as it is about defending the case."

The process Scherer outlined is called "discovery," and it may turn out to be the nexus of Bonds' case.

By legal definition, discovery is the pre-trial fact-finding process that takes place after charges have been filed. It allows the defending party to request relevant information, including depositions, grand jury testimony, documentary and physical evidence, plus witness lists in an attempt to "discover" pertinent facts before the trial.

In this instance, it will be the first time Bonds and his attorneys will be able to review the evidence the federal prosecutor has presented to a grand jury, which by nature is one-sided. During the grand jury process, a defendant is afforded no representation. All the testimony and the evidence presented is done under a cloak of secrecy and only after the grand jury opts to indict is that evidence forthcoming.

A grand jury only has to find that there is "probable cause" that anyone committed a crime, a much lower standard than the one of "beyond a reasonable doubt," which a trial jury must adhere to in a criminal case.

"Despite the charges that have been filed against me, I still have confidence in the judicial system and especially in the judgment of the citizens who will decide this case," Bonds said in a statement published on his web site Friday morning. "And I know that when all of this is over, I will be vindicated because I am innocent."

On Nov. 15, when the indictment was unsealed, Bonds and the public got the first inkling of the evidence the federal government may have in the case when court documents noted that "during the criminal investigation, evidence was obtained, including positive tests for the presence of anabolic steroids and other performance-enhancing substances, for Bonds and other professional athletes."

Bonds appeared before the original grand jury investigating the Bay Area Laboratory Co-Operative on allegations of money laundering and illegally dispersing performance-enhancing drugs on Dec. 4, 2003. At the time, he testified under oath on numerous occasions that he had never used anabolic steroids, testosterone and human growth hormone or had been administered any of those drugs with a needle.

Those documents didn't reveal the nature of the positive tests or the time frame in which they were administered.

During the months ahead before trial, it is federal law that Bonds and his attorneys have to be given that information. If the federal prosecutor can present irrefutable evidence that Bonds committed perjury and had indeed previously used performance-enhancing drugs, then his attorneys may advise him to make a deal to close the case on lesser charges accompanied by diminished punitive measures.

In that instance, as was the case when track star Marion Jones recently plea-bargained her perjury charges in the BALCO case, Bonds will almost certainly have to stage a press conference publicly admitting his guilt.

In contrast, if Bonds' attorneys deem that the government's evidence is shaky, they will probably seek dismissal of the charges, and if the judge denies that, certainly defend their client at trial.

If found guilty by a jury, Bonds could receive up to 30 years in prison, but it's more likely that he wouldn't be sentenced to more than a year, Scherer said. Scherer also added that it's unlikely the federal prosecutor would seek an indictment against Bonds if he had a flimsy case.

"It does a prosecutor no good to ram a bad case through the grand jury, only to lose it at trial," Scherer said, "The U.S. Attorney's office, unlike some state and military prosecutor's offices, never settles for probable cause. They approach the grand jury aiming to establish proof beyond a reasonable doubt. Their goal is to come out of the grand jury with evidence so overwhelming that they can force the defendant to take a deal. Federal prosecutors could get a bad case indicted, but it wouldn't be worth their time."

Of course, Bonds could win the case, particularly if heard in San Francisco, where it might be tough to find 12 jurors who are not sympathetic to a local sports hero, a man with 762 lifetime homers. Bonds is hugely popular in a town where he played 15 seasons for the Giants, and only four months ago at AT&T Park, hit his 756th homer to pass Hank Aaron into first place on the all-time list, generating a seven-minute standing ovation.

In any event, Scherer said, because of the upcoming months of legal maneuvering, the 2008 baseball season could be over before U.S. v. Bonds reaches that point.

Barry M. Bloom is a national reporter for MLB.com. This story was not subject to the approval of Major League Baseball or its clubs.